This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Tuesday, June 28, 2005

[NEWS] The homeless may be overwhelmed by comparatively insignificant charges. An article by Amy Roe in the current issue of the homeless paper Real Change explains:

It doesn’t snow much in Seattle, but even in the heat of summer many of this city’s homeless are all too familiar with the snowball effect: A homeless person is fined for a misdemeanor offense, like urinating in public, but fails to pay it because he doesn’t have the money. Eventually the double-digit ticket becomes an outstanding warrant.

In 1989 San Diego set up a homeless court, bringing together legal services and social services. When people are in the program, they may be able to enter into plea agreements that give them credit for actions such as participating in substance abuse or anger management programs. Other cities have also tried these special courts, and now some advocates want to set one up in Seattle.

Yesterday a Seattle Veteran's Court forum was hosted by the Seattle Municipal Court, Columbia Legal Services, the Seattle City Attorney, and the Associated Counsel for the Accused. City of Seattle news release. The Seattle PI reports on the forum, and explains that focusing on veterans is "mainly just a way to start the program on a small scale." Tracy Johnson, Veterans Court May Be Created. Presiding Judge Fred Bonner of Seattle Municipal Court said: We're trying to marshal all the resources that exist to help them overcome the reasons that they live on the street."

Another advocate of the proposal (interviewed in the Real Change) is Columbia Legal Services attorney Ishbel Dickens. (By the way, she was president of the Student Bar Association when she was at the UW).

The investigation of the defendant involved a sting and a confidential informant (CI).

Holler argues that the district court erred by not dismissing his indictment for outrageous government conduct because (1) the CI had a history of misconduct as an informant and the DEA was aware of the prior misconduct, (2) the CI engaged in misconduct in this case, including the theft of drug money, and (3) the government ratified the CI's behavior.

On appeal, the claim is reviewed de novo, using a clearly erroneous standard for the district court's findings of fact.

"Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed ." * * *To meet this high standard, the "governmental conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice." * * * Here, the CI's conduct was neither attributable to the government, nor was it "so excessive, flagrant, scandalous, intolerable, and offensive as to violate due process." * * * Moreover, * * * "[i]t is unrealistic to expect law enforcement officers to ferret out criminals without the help of unsavory characters."

Accordingly, we find that the misconduct complained of in this case, even if proved, does not rise to the level required to establish outrageous government conduct.

According to the four-part test applied in this circuit, prior act evidence is admissible if (1) it proves a material element of the charged offense; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the act; and (4) in cases where knowledge and intent are at issue, the act is similar to the offense charged. * * * Additionally, Federal Rule of Evidence 403 requires the district court to balance the probative value of the evidence against its prejudicial effect. * * *To knowingly and intentionally possess contraband with the intent to distribute is a specific intent offense. * * * defendant's prior conviction for possession of contraband with the intent to distribute is relevant to a material element of conspiracy to possess contraband with the intent to distribute and attempted possession of contraband with the intent to distribute, "because it tends to show knowledge." * * *Additionally, any error with respect to the admission of prior act evidence was harmless for two reasons. First, the judge gave a limiting instruction. * * * Second, there was an abundance of substantial and direct evidence against Holler, * * *.

[CASE] In an unpublished opinion, the 9th Circuit discusses the use of evidence of other "bad acts" in a wire fraud case. U.S. v. Staggs, 2005 WL 1400266 (9th Cir. June 15, 2005), Find Result - 2005 WL 1400266.

Evidence of prior bad acts cannot be admitted to show that the defendant has a propensity to do bad stuff, but Rule 404(b) allows it in for certain other purposes. Here:

The elements of wire fraud are: "a scheme to defraud, use of the wires in furtherance of the scheme, and the specific intent to defraud." * * * Here, evidence relating to Staggs' involvement with prior investment programs demonstrated Staggs' knowledge that his clients had lost their principal investments and received no profits from the prior schemes. The evidence also showed that these programs had been shut down because they were fraudulent. This evidence was admitted to prove a material element of the offense: Staggs' knowledge of the fraudulent nature of the charged scheme and his intent in promoting it.

(citations omitted). The court discusses several other evidentiary issues in this short opinion.

[CASE] Division 1 affirms a conviction, saying the trial court did not abuse its discretion in excluding the defense's evidence that someone else was the perpetrator of the crime. State v. Howard, --- P.3d ---, 2005 WL 1367356 (Wash. App. June 6, 2005) (published in part), Find Result - 2005 WL 1367356

Four men invaded and robbed the victim's apartment. The victim knew and identified one of the men, but did not know the other three. The one she knew identified his three accomplices, including Edward Howard. The victim identified Howard in a photo montage. At trial, a jury convicted him of first degree robbery and first degree burglary but acquitted him of an assault charge.

On appeal Howard argued that the trial court erred in excluding evidence that another man, known as "Smoke Lock," was the fourth participant in the robbery. Division 1 disagreed:

11 A criminal defendant has a constitutional right to present a defense consisting of relevant, admissible evidence. In order to be relevant, and therefore admissible, the evidence connecting another person with the crime charged must create a train of facts or circumstances that clearly point to someone other than the defendant as the guilty party. The evidence must establish a nexus between the other suspect and the crime. The defendant has the burden of showing that the "other suspect" evidence is admissible. The admission or refusal of evidence lies largely within the sound discretion of the trial court and is reviewed only for an abuse of discretion. Howard mischaracterizes the trial court's ultimate refusal to permit Lyne's testimony as an improper credibility determination.

13 Although the court noted that it found Lyne not credible as a matter of law, the permissible basis for the court's ruling was that the nexus between "Smoke Lock" and the crime was insufficient to support admission of "other suspect" evidence.* * *16 Based on the initial testimony, the court ruled that there was sufficient evidence to allow the admission of "other suspect" evidence. * * *

17 The court considered the more fully developed record--both the testimony of Howard and the revised testimony of Lyne--and found there was an insufficient nexus between "Smoke Lock" and the crime. This was a proper exercise of discretion by the court. Howard simply failed to establish sufficient evidence to support his claim that "other suspect" evidence should be admitted. This record does not support that claim.

Other issues addressed include:

hearsay (someone would have testified that he met a man who might have been introduced as "Smoke Lock").

impeachment with prior testimony (the court did not allow the defense to call the known robber in order to impeach his testimony with inconsistent statements).

unanimous jury verdict (possible confusion in jury instructions).

firearm enhancement jury instruction.

ineffective assistance of counsel. (This is the part of the opinion that's unpublished.)

Friday, June 10, 2005

If you notice odd things like duplicate posts, just chalk it up to glitches. Blogger (the service that hosts this blog and thousands of others) is sometimes unstable. That means that some posts disappear after posting. When I catch it I go back and reconstruct them. And in the confusion, sometimes more than one survives.

I've learned to back up posts to a Word document (most of the time). I wish it were smoother, but Blogger is a free service and does a lot well.

After the defendant pleaded guilty to one count of delivering cocaine and one count of possession of marijuana with intent to deliver, he requested a DOSA. The prosecutor argued against it because of the defendant's criminal history and pending charges. The trial judge denied the motion for a DOSA.

The judge did not dwell on the facts of Grayson's case in his oral ruling. Instead, he stated simply:

The motion for a DOSA ... is going to be denied. And my main reason for denying [the DOSA] is because of the fact that the State no longer has money available to treat people who go through a DOSA program. *2 So I think in this case if I granted him a DOSA it would be merely to the effect of it cutting his sentence in half. I'm unwilling to do that for this purpose alone. There's no money available. He's not going to get any treatment; it's denied.

After discussing the facts a judge may consider at sentencing, the Supreme Court concluded:

20 We reverse on the limited grounds that the trial judge did not appear to meaningfully consider whether a sentencing alternative was appropriate. But we do not fault the judge at all for having background knowledge about DOSA. If judges are to consider meaningful alternatives to prison sentences, they should be knowledgeable about the programs, their effectiveness, and whether the offender is a good candidate for the program. Again, the purpose of DOSA is to provide meaningful treatment and rehabilitation incentives for those convicted of drug crimes, when the trial judge concludes it would be in the best interests of the individual and the community. See RCW 9.94A.660. But trial judges do not rule in a vacuum, and we do not require trial courts to ignore funding realities.

Four justices joined Justice Chambers's majority opinion. Justice Bridge wrote a dissent, joined by the remaining three justices, arguing that the trial judge was within his discretion in finding that a DOSA would not benefit the defendant and the community.

[CASE] An officer found Monte Richie, severely injured, on the ground near his truck, in Asotin County (in the SE corner of the state). Mr. Richie was taken to a regional hospital across the border in Idaho. In the hospital, a Washington trooper investigating the accident arrested him for DUI and had a phlebotomist draw his blood to be tested in the toxicology lab.

Mr. Richie appealed the administrative suspension of his driver's license.

¶ 16 Considering the law and our unique facts, we clarify Clarkston and hold that pursuing Washington officers may effectuate a lawful arrest in Idaho for DUI if reasonable suspicion exists to believe the suspect may have been driving under the influence in Washington before the officer pursues the suspect into Idaho. Accordingly, we decline the State's invitation to overturn Clarkston, because its holding is based upon distinguishable facts, even if its legal reasoning may be capable of misinterpretation as suggested by the State.*4 ¶ 17 [The trooper's] accident investigation revealed Mr. Richie was involved in an accident with facts indicative of drinking and driving. * * * The Idaho statute merely requires a belief that an individual has committed a felony, not probable cause. * * * [The trooper] had reason to believe Mr. Richie was a DUI suspect prior to "pursuing" him into Idaho. * * * Trooper Bancroft properly established probable cause for arrest.

The court found that the state had prima facie shown the Idaho phlebotomist to be qualified and Richie had refuted the prima facie case.

Monday, June 6, 2005

[NEWS] The King County Prosecutor's Office is helping witnesses -- especially child victims -- with a dog from Canine Companions for Independence. I'm a sucker for a good dog story -- and what a great story this is, when kids can get comfort during the scary and disturbing experiences they face during the investigation and trial of their abusers. The Seattle Times: Dogs lend comfort to kids in court.

* * * In recent years, psychologists from the clinical, personality, developmental, cognitive, and social areas have brought their theories and research methods to bear on an analysis of confession evidence, how it is obtained, and what impact it has on judges, juries, and other people.

Drawing on individual case studies, archival reports, correlational studies, and laboratory and field experiments, this monograph scrutinizes a sequence of events during which confessions may be obtained from criminal suspects and used as evidence. First, we examine the preinterrogation interview, * * *

Second, we examine the Miranda warning and waiver, * * *

Third, we examine the modern police interrogation, * * * Fourth, we examine the confession itself, discussing theoretical perspectives and research on why people confess during interrogation. * * *

Fifth, we examine the consequences of confession evidence as evaluated by police and prosecutors, followed by judges and juries in court. Research shows that confession evidence is inherently prejudicial, that juries are influenced by confessions despite evidence of coercion and despite a lack of corroboration, and that the assumption that "I’d know a false confession if I saw one" is an unsubstantiated myth. Finally, we address the role of psychologists as expert witnesses and suggest a number of possible safeguards. In particular, we argue that there is a need to reform interrogation practices that increase the risk of false confessions and recommend a policy of mandatory videotaping of all interviews and interrogations.

[RESEARCH] When do children develop the ability to judge when someone might be telling an untruth? Here is an NPR story reporting on some research that found second graders were sensitive to the possibility of lying -- in certain circumstances they were "selectively cynical" and saw how self-interest influences behavior. Sixth graders were not only aware that another person might lie about an event, but they also understood unconcious bias -- that is, the peope might tell untruths because self-interest causes them to see or remember situations in a particular way. NPR : Children and Understanding Lies

The principle researcher is Candice Mills, whose web page summarizes this research, which is published in:

Friday, June 3, 2005

[BOOK] Former Seattle police chief Norm Stamper has written a book about his career and police practices in the U.S.: Breaking Rank: A Top Cop's Exposé of the Dark Side of American Policing. The publisher's description says:

Opening with a powerful letter to former Tacoma police chief David Brame, who shot his estranged wife before turning the gun on himself, Stamper introduces us to the violent, secret world of domestic abuse that cops must not only navigate, but which some also perpetrate. Stamper goes on to expose a troubling culture of racism, sexism, and homophobia that is still pervasive within the twenty-first-century force, exploring how such prejudices can be addressed. He reveals the dangers and temptations that cops on the street face, describing in gripping detail their split second life-and-death decisions. Breaking Rank reveals Norm Stamper as a brave man, a pioneering public servant whose extraordinary life has been dedicated to the service of his community.

[EVENT] Mr. Stamper will speak at Seattle's Town Hall next week (Thur. June 9, admission $5). He will be on TVW's Author's Hour Sunday, June 12, at 9:00.

The 9th Circuit affirmed the district court's denial of habeas corpus relief, rejecting a claim of ineffective assistance of counsel for, among other things, failing to exclude a photospread identification. Easter v. Fleming, 2005 WL 1189611 (9th Cir. May 20, 2005), Find Result - 2005 WL 1189611. (Westlaw is now loading 9th Circuit briefs, so we can click from the opinion to the brief filed by the Innocence Project.)

The court summarizes (I love it when the judge lays it out so clearly!):

1 Randy Allen Boehning appeals his conviction of three counts of first degree child molestation. We hold that prosecutorial misconduct occurred when the prosecutor referred to three counts of rape that had been dismissed while suggesting that the victim's statements supported those counts but she was not "comfortable" enough to testify about those rapes at trial. * * * This argument appealed to the passion and prejudice of the jury, was flagrant, and called on the jury to determine guilt on improper grounds.

2 The prosecutor also impermissibly bolstered the victim's credibility by arguing that her prior statements, which were (1) plainly hearsay, (2) not admissible (the victim was 10 years old at the time of the hearsay so chapter 9A.44 RCW was not implicated), and (3) not admitted, were consistent with her trial testimony. The prosecutor based this argument on the fact that the defense counsel did not impeach the victim with any prior inconsistent statements to witnesses. The State's claim that this is a reasonable inference is wrong; this argument also constituted prosecutorial misconduct.

3 During trial, the prosecutor also asked Boehning whether the victim had "made [it all] up." * * * This placed Boehning in a position where he had to challenge the truthfulness of the child's testimony. This is flagrant prosecutorial misconduct and highly prejudicial in a case where there were no witnesses or physical evidence to corroborate the victim's testimony.

[EVENT] Should the Washington State Bar Association take a position on Initiative 330? That's a question the Board of Governors will address this week when it meets on Thursday and Friday. According to a press release, the Board will meet at the Bellevue DoubleTree Inn Thursday, June 2, 2-5, and Friday, June 3, 9-12 and 1:30-4:30.

Thursday's session will be devoted to the tort initiatives and medical malpractice issues that will be on the November ballot. The Board will discuss whether to take a position on Initiative 330, which proposes amendments "relating to health care liability reform." Seattle attorney Mark Johnson, WSBA governor from the 7th-West District, will give the Board a summary of I-330. Others addressing the Board will be John Connelly, president-elect of the Washington State Trial Lawyers Association; Thomas J. Curry, CEO of the Washington Medical Association; Barbara Flye, former executive director of Washington Citizen Action; Jeff Frank, president of the Washington Defense Trial Lawyers; and Mike Kreidler, Washington state insurance commissioner.

A highlight of Friday's meeting will be the election of the new WSBA president-elect. This individual will serve as president-elect beginning in September, and will assume the presidency of the WSBA in September 2006.